Appeal from a final judgment of the United States District Court for the Southern District of New York, Morris E. Lasker, Judge, dismissing claims under 42 U.S.C. § 1983, Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17, and the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634.
Oakes, Kearse, and Sloviter,*fn* Circuit Judges.
Plaintiff William Washington appeals from a final judgment of the United States District Court for the Southern District of New York, Morris E. Lasker, Judge, dismissing his claims against defendant New York City Board of Estimate ("Board") under (a) 42 U.S.C. § 1983 (1976), (b) Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e to 2000e-17 (1976 & Supp. IV 1980), and (c) the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634 (1976 & Supp. V 1981). The Title VII and ADEA claims were tried to the court without a jury and were dismissed at the close of the trial; the § 1983 claim was tried before a jury, but the court refused to submit it to the jury and instead dismissed that claim as well. On appeal, Washington contends that the district court improperly denied two pretrial motions, to wit, his application to amend his complaint to add two individual defendants on his § 1983 claim, and his request to have his age discrimination claim heard by a jury. We find some merit in the first contention and accordingly remand to the district court for appropriate further proceedings on the § 1983 claim; in all other respects we affirm.
Washington, an employee of the Board since 1972, commenced this action pro se on April 16, 1981. In 1978 he had held the position of clerk and office aide, and had taken a promotional examination for the position of Office Associate. Of the seven Board employees who took the test, Washington's "score," a combination of his test results and his seniority, was the highest. Washington was not promoted. His complaint alleged chiefly that the Board had denied him promotion on the basis of his race, color, gender, and age. The only defendant named in the complaint was the Board.
Thereafter Washington filed numerous documents with the court, among them a cluster of papers on May 14, 1981, the topmost of which was an application for a stay as to certain deadlines. Attached to the stay application was a second application, this one "request[ing] the amendment of the above caption," to list as defendants, in addition to the Board, "Theodore Meekins[,] Secretary of the Board of Estimate [and] Earl Wilkinson[,] Office Manager of the Board of Estimate." The court does not appear to have taken any action on Washington's application to add Meekins and Wilkinson as defendants.*fn1
Apparently the summons and complaint were not served on the Board until July 29, 1981. The Board filed its answer on August 26, 1981. On September 22, Washington filed a "request that the court grant me a trial to resolve the above action." There was no mention of a jury, and the record does not reflect any demand for a jury trial. Also on September 22, Washington moved to have the court appoint an attorney to represent him. The court denied Washington's request on November 24, and Washington proceeded pro se until July 29, 1982, five days before the start of the trial.
In the meantime, Washington conducted considerable pretrial discovery, serving, inter alia, eight sets of interrogatories. Most of these were addressed not to the Board but to Meekins and Wilkinson. A document demand was addressed to Meekins alone. The interrogatories inquired principally as to the promotional patterns and practices of the Board and as to the racial attitudes of Meekins and Wilkinson.
On all of the papers filed by both sides, only the Board was listed as a defendant. However, in certain documents Washington referred to Meekins and/or Wilkinson as "defendant." For example, in seeking to compel answers to certain interrogatories addressed to those individuals, Washington stated, "The defendant has stated that he could 'mess my record up. '" (Plaintiff's Exception to the Defendants' Objections to Some of My (Plaintiff's) Interrogatories, at 2.)
Irrespective of the addressee, all of Washington's discovery demands were eventually responded to by the Board. The Board timely responded to some requests but not others, and Washington moved to compel answers. In an order dated July 26, 1982, the court denied the motion without prejudice, on the basis of the Board's promise to respond soon, but "noted that it appears from the papers submitted that defendant has been tardy in responding to plaintiff's discovery requests with no explanation offered to either Washington or the court." The Board filed its answers to Washington's interrogatories on July 29.
Also on July 29, 1982, apparently, the court appointed Charles P. Kelly, Esq., to represent Washington. Trial was scheduled to begin on August 3. Kelly immediately moved, inter alia, to amend the complaint to add Meekins and Wilkinson as defendants on the § 1983 race discrimination claim and to be allowed a jury trial on the age discrimination claim. The court denied both requests.
Just prior to the start of the trial on August 3, these motions were renewed. The court refused to permit a jury trial on the ADEA claim, citing the tardiness of the request:
MR. KELLY: As to the case of age discrimination, is that going to the jury, that question?
THE COURT: There has been no jury demand. . . . Under the circumstances, if the City wishes to oppose it, they have a right to. I don't care one way or the other.
MR. SHAFFER [attorney for the Board]: We would oppose that.
MR. KELLY: Plaintiff requests a jury trial on the age ...